https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1433

Simiyu v Consolbase Limited (Appeal E136 of 2025) [2026] KEELRC 1433 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEELRC 1433 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Mombasa Appeal E136 of 2025 M Mbarũ, J May 28, 2026 Between Sammy George Simiyu Appellant and Consolbase Limited Respondent (Being an appeal from the judgment of Hon. G. Sogomo delivered on 27 June 2025 in Mombasa CMELRC No. E845 of 2019) Judgment Appeal and Cross-Appeal 1.The appeal and cross-appeal that arise from the judgment delivered on 27 June 2025 in Mombasa CMELRC No. E845 of 2019. The appellant, aggrieved by the judgment, has raised 6 grounds that the learned magistrate erred in law and fact in failing to address the evidence on record in its entirety. The finding that the summary dismissal was fair was made without a proper inspection of the record, the police abstract, CCTV footage, or the logbook; hence, there were no grounds for the termination of employment. 2.Other grounds of appeal are that the learned magistrate erred in law and failed to find that the appellant was accorded due process and allowed his defence during the disciplinary process, which was held in less than 24 hours. The learned magistrate should have assessed the claim and awarded the house allowance that was not included in the minimum wage. The applicants' case is that the appeal should be allowed with the following findings:a.That there was unfair termination of his employment, and compensation is due.b.House allowance.c.One month's notice pay. Cross-appeal 3.The cross-appeal is that:1.The trial magistrate erred in law and fact by not considering the evidence of all due leave for the 3 years having been fully paid, placed before him by the cross-appellant, thereby resulting in a wrong decision in the circumstances.2.The learned trial magistrate erred in law and fact in making a finding for payment of the 3 years leave.3.The trial magistrate erred in not awarding costs to the respondent, having found for them in nearly all other issues raised and litigated. 4.The cross-appellant thus asked that the cross-appeal be allowed, with the dismissal of the award of 3 years' leave to the appellant, together with costs for the trial court and the appeal. 5.The background to the appeal is a claim filed by the appellant against the respondent. 6.The claim was that the respondent employed the appellant as a bus driver to pick and drop off employees at various destinations during the day at a wage of Ksh. 30,208 per month. He worked from 1 March 2016 to 30 April 2019, when his employment was terminated through summary dismissal. His case was that on 28 April 2019, the application was assigned the motor vehicle KCG 535E, which Mr Ezra authorised to take him to a hotel, and he reported that the vehicle had a mechanical problem. Since it was a Sunday, he was allowed to take the vehicle to the mechanic the next day. On the way to the hotel with Ezra, they met Baldwin, who boarded the vehicle. Upon returning to the CB1, the hand brake disengaged, causing the vehicle to move and sustain damage. On 29 April 2019, the claimant reported for duty but was sent home. On 30 April 2019, he was called to a meeting, issued a notice to show cause, and then his employment was terminated by summary dismissal. His case was that the disciplinary hearing was flawed, that he had no time to prepare, and that this resulted in an unlawful and unfair termination of employment. During his employment, there was underpayment of wages and no due process. He claimed the following:a.Notice pay Ksh. 30,208.b.Underpayments for 37 months, Ksh. 1,481,339.40.c.12 months' compensation Ksh. 362,496.d.3 years' leave pay Ksh. 90,624.e.3 years of gratuity pay Ksh. 45,312.f.Costs. 7.The response was that the appellant was employed as a machine reach starker, earning Ksh. 30,208 per month, and his employment was terminated for a valid reason. On 28 April 2019, the appellant, in the company of Baldwine Mwanyalo Nyambu, a claimant in Mombasa CMERLC No. 62 of 2019 and Ezra Mugaisi, negligently and recklessly caused damage to the respondent’s motor vehicle KCG 535E. A notice to show cause was issued on 29 April 2019, requiring him to explain the incident and attend a disciplinary hearing on 30 April 2019, which he did. He failed to provide satisfactory responses, leading to the termination of his employment, with payment of terminal dues and a Certificate of Service. Notice pay and compensation are not due since there was a valid reason for the temporary termination of employment. The appellant took all his leave days, leaving a balance of only 4 paid days. Gratuity is not due because statutory deductions and payments were made. The overtime claim is not due. 8.The learned magistrate heard the parties and held that the appellant's claim had no merit, save for the unpaid leave days in the amount of Ksh. 58,741.67. 9.The appellant submitted that the trial magistrate erred both in law and fact in finding that his summary dismissal was fair, despite the respondent's alleged failure to substantiate the accusations against him. Although he was employed by the respondent as a bus driver, earning Ksh. 30,208 per month, his services were unfairly terminated on 30 April 2019 following allegations that he negligently caused damage to the respondent’s motor vehicle and was intoxicated whilst on duty. 10.The appellant submitted that on 28 April 2019, he reported for duty and was later instructed by his supervisor, Mr Ezra, to drive him for breakfast despite informing him that the vehicle had mechanical issues. According to the appellant, after returning to the respondent’s parking yard, the vehicle moved after he engaged the handbrake and sustained minor damage, which he reported to management. He further submits that on 30 April 2019, he was issued with a show cause letter, a termination letter, a dues letter, a pays lip, and a certificate of service. 11.The appellant challenges the trial court's conclusion that there was substantive justification and procedural fairness in the dismissal. He argues that the respondent failed to produce key evidence, such as an inspection report, a police abstract, CCTV footage, photographs, an NTSA inspection report, or a logbook, to substantiate the alleged accident or damage to the motor vehicle. He also contends that there was no proof he had consumed alcohol, as no alcohol-blow test, medical report, or independent evidence was provided. 12.The appellant further submits that he did not attend any disciplinary hearing and that the respondent failed to prove service of the show-cause letter or the invitation to the hearing. He contends that the alleged disciplinary process was unfair because the hearing was convened less than 24 hours after the show-cause letter, and that he was not given adequate time to prepare his defence or secure representation. He also argues that the respondent failed to produce CCTV footage or other evidence showing his attendance at the hearing. 13.In Walter Ogal Anuro v Teachers Service Commission (2013) KEELR 386 (KLR), the court held that for termination to pass the fairness test, there must be both substantive justification and procedural fairness. He cites the decision to support the proposition that an employer must conduct proper investigations and genuinely establish the reasons for dismissal before terminating employment. 14.In Baldwin Mwanyalo Nyambu v Consolbase Limited, Mombasa ELRC Cause No. 62 of 2019, the court held that an employee must be given a reasonable time to prepare for a disciplinary hearing and be informed of the right to be accompanied by another employee or representative under Section 41 of the Employment Act. He submits that issuing a show-cause letter and inviting an employee to a disciplinary hearing the following day is casual, unfair, and contrary to the rules of natural justice. 15.The appellant contends that the respondent failed to present sufficient material to the court to justify summary dismissal and that the trial magistrate did not properly assess the evidence submitted by the Appellant. He therefore urges the appellate court to conclude that the dismissal was unfair and unlawful and to uphold the appeal along with the remedies sought in the Memorandum of Claim. 16.The respondent on the cross-appeal asserts that the appellant’s summary dismissal was lawful and justified because he engaged in gross misconduct while on duty. On 28 April 2019, the appellant, along with Baldwin Nyambu and Ezra Mugaizi, left the respondent’s yard during working hours, went to Changamwe, where they consumed boiled meat and alcohol, and later returned with the respondent’s motor vehicle registration number KCG 535E, damaged at the front bumper. The respondent further states that the appellant failed to stop for inspection at the gate and was later found asleep in the vehicle after urinating on himself. It submits that Ezra Mugaizi’s statement corroborated the events and that the appellant’s conduct amounted to gross misconduct warranting summary dismissal under Sections 44(3) and 44(4) of the Employment Act. 17.The respondent asserts that due process was observed before dismissal. It states that the appellant received a notice to show cause dated 29 April 2019, was questioned alongside other employees involved, attended a disciplinary hearing on 30 April 2019 with a representative of his choice, and was subsequently summarily dismissed after all issues raised were considered. According to the respondent, the appellant participated willingly in the disciplinary process and failed to demonstrate any prejudice. The respondent further asserts that the trial court properly evaluated the complete evidence and correctly concluded that the appellant’s behaviour exposed the employer to industrial accidents and constituted serious misconduct. It maintains that the appellant was provided adequate time and resources to prepare his defence and that the disciplinary process satisfied both substantive and procedural fairness. 18.The respondent further argues that disciplinary proceedings in employment matters should not be equated with court trials, and that the absence of documents such as CCTV footage, police abstracts, or inspection reports does not invalidate the process. 19.In George Musamali v G4S Security Services Ltd [2016] eKLR, the court held that a disciplinary hearing within an employment relationship is not a court trial, and the rigours of court proceedings cannot be strictly applied to workplace disciplinary processes. The respondent also references Modern Mail Ltd v Otieno (Appeal E085 of 2025) [2026] KEELRC 145 (KLR), in which the court stated that timelines are crucial in determining whether an employee was given adequate time to prepare for a disciplinary hearing and to respond to a notice to show cause. The court further emphasised that disciplinary proceedings are not mere mechanical box-ticking exercises, but legally prescribed processes meant to ensure fairness in the termination of employment. 20.In Oyawa v Kenya Plantation & Agricultural Workers Union (Employment and Labour Relations Cause E010 of 2025) [2026] KEELRC 264 (KLR), the court reiterated the holding in Thomas De La Rue (K) Ltd v David Opondo Omutelema [2013] KECA 492 (KLR) that for termination to be fair, there must be both substantive justification and procedural fairness. 21.On the issue of notice pay, the respondent submits that the appellant was not entitled to one month’s salary in lieu of notice because he was lawfully summarily dismissed for gross misconduct under Section 44(1) of the Employment Act. In support of this position, the respondent cites Ochieng v G4S Kenya Limited (Appeal E068 of 2024) [2025] KEELRC 2747 (KLR), where the court held that an employee who is lawfully summarily dismissed is not entitled to pay in lieu of notice. 22.In its cross-appeal, the respondent argues that the trial magistrate erred by awarding the appellant leave pay despite evidence allegedly showing that all leave days had been paid. It submits that the trial court improperly rejected its leave records on procedural grounds instead of considering them in the interest of substantive justice under Article 159(2)(d) of the Constitution. In support, the respondent relies on Muneer Haroon Ismail v The Hon. Attorney General [2011] KEHC 2341 (KLR), where the court held that although courts should administer justice without undue regard to procedural technicalities, rules of procedure remain important. Courts should determine matters in a manner that serves substantive justice. The respondent also relies on Simon v Vanga Shoes Company Limited (Cause E005 of 2022) [2023] KEMC 108 (KLR), where the court stated that the principal duty of the court is to examine facts, evaluate evidence, subject the proven facts to the law, and render a decision on a balance of probabilities. 23.The respondent also seeks costs of both the trial and the appeal, arguing that it substantially succeeded before the trial court. In support of the prayer for costs, reliance is placed on Kiteme v Kimanthi (Civil Appeal 61 of 2019) [2023] KEHC 605 (KLR), where the court held that costs ordinarily follow the event and that a successful party is entitled to costs under Section 27 of the Civil Procedure Act. 24.The appellant submits that the respondent’s Cross-Appeal is incompetent and should be dismissed. According to the appellant, the appeal was initially dismissed on 21 October 2025 for lack of compliance with Rule 15(2) of the Employment and Labour Relations Court (Procedure) Rules in the presence of the respondent’s counsel, who did not raise any issue regarding the Cross-Appeal. The appellant argues that, when the appeal was later reinstated by an application dated 24 October 2025, which was granted on 19 February 2026, the respondent still failed to address the Cross-Appeal in its replying affidavit or submissions. The appellant, therefore, contends that the Cross-Appeal was effectively abandoned and that there is consequently no valid Cross-Appeal before the Court. 25.The appellant further argues that, even if the Cross-Appeal is considered, it is legally flawed, invalid, and an abuse of the court process. The appellant observes that the Cross-Appeal mainly disputes the award of leave pay, yet the respondent failed to produce the leave records before the trial court properly. According to the appellant, the trial magistrate rightly ruled in his favour after the respondent’s belated attempt to introduce leave forms was rejected by the court in a decision delivered on 23 February 2023. 26.The appellant submits that the trial court correctly relied on Section 28 of the Employment Act regarding annual leave entitlement and rightly held that the duty to maintain employee records rests with the employer, and in the case of Wafula vs Gurjit Singh Shop (2022) eKLR, where the court stated that Section 76 of the Employment Act imposes the obligation of keeping employment records on the employer. 27.The appellant, therefore, contends that the respondent cannot utilise the Cross-Appeal to challenge the leave award after failing to produce the relevant leave documents before the trial court. Determination 28.This is a first appeal. The court may review the record, reassess the findings, and conclude. However, consider that the trial court had the benefit of seeing and hearing the witnesses in open court. 29.The appellant’s case was that, following an incident on 28 April 2019, he had reported to Ezra that the vehicle assigned to him, KCG 353E, had a mechanical problem. He took Ezra and Baldwine to a hotel, and upon returning, the handbrake disengaged, causing the vehicle to be damaged. He was issued a notice to show cause and, on 30 April 2019, was invited to a rushed disciplinary hearing, leading to the termination of his employment, which was unlawful and unfair. 30.The cross-appellant and employer’s case was that the appeal was issued with notice to show cause on 29 April 2019, following an incident on 28 April 2019. While assigned the motor vehicle KCG 353E, we found damage to the bumper and a broken front headlight. Scratches on the driver’s side from front to back, and a broken windscreen. The van was packed at the CB2 with the driver missing. 31.The learned magistrate analysed the evidence and held that there were valid and justified grounds for the termination of employment by summary dismissal. The appellant was a van driver; hence, there was no underpayment of wages, and the claims made were without merit, save that there was no record of taking annual leave days, and since efforts to introduce such records were dismissed in the ruling delivered by the trial court on 23 February 2023. 32.There is no appeal against the trial court's ruling. There remained no annual leave records. Such a record cannot be urged at this stage. 33.The trial court thus awarded the appellant annul leave pay in the amount of Ksh. 58,741.67. 34.Indeed, by notice to show cause dated 29 April 2019, the cross-appellant required the appellant to show cause why his employment should not be terminated following events that occurred on 28 April 2019, resulting in damage to the assigned motor vehicle KCG 353E. He was invited to a disciplinary hearing the next day, on 30 April 2019. 35.The appellant attended, and Ezra confessed that on 28 April 2019, together with the appellant and Baldwin, they drank whiskey, a fact the appellant admitted and asked for pardon. While parking the assigned vehicle in the yard, it got damaged. 36.Under section 44 of the Employment Act (the Act), the employer is allowed the sanction of summary dismissal where the employee is in breach of the employment contract and is guilty of gross misconduct, as held in Anne Theuri v Kadet Limited [2013] KEELRC 160 (KLR). 37.In Corporate Talk Group Limited v Sitati & 4 others [2026] KEELRC 959 (KLR), the court emphasised that the few occasions where the employer is allowed to immediately and instantly terminate employment are where the employee has behaved so grossly that the employment relationship is no longer tenable. Therefore, under section 44(3) of the Act, in summary dismissal for gross misconduct disentitles an employee to notice or payment in lieu thereof. 38.In Imboba v Safaricom Plc [2026] KEELRC 1223 (KLR), the court held that the only safeguard for the employee in cases of gross misconduct is that the legislation complained of is brought to his attention and that he is allowed to make his representations. This position is affirmed in H Young & Co. (EA) Ltd v Kilungya [2025] KEELRC 2223 (KLR). 39.The appellant claims that he was invited to the disciplinary hearing within 24 hours, which is thus allowed under section 44(3) of the Act, where the employee finds a fundamental breach of the employment contract. The appellant was thus secured through the notice to show cause, which outlined the allegations made against him, and was invited to attend the disciplinary hearing on 30 April 2019. Present was Ezra, and the appellant admitted to having drunk whiskey. He was thus secured under his rights pursuant to section 41(2) of the Act. 40.The learned magistrate well analysed the record and the evidence. There was no need to call for the CCTV footage, police abstract report, or any matter beyond the evidence available from the shop floor. 41.The appeal to this extent must fail. There were valid and lawful grounds for summary dismissal of the appeal. 42.On the claims, the appellant asserts that he was underpaid. He was employed as a van driver. His wage was Ksh. 30,208 per month. 43.In 2019, the Wage Orders allowed a minimum wage of Ksh. 18,319.50 plus a 15% house allowance of Ksh. 2,747.90 gross pay, being Ksh. 21,069.45 per month. 44.In the payment statement filed by the appellant, a house allowance was allocated in the amount of Ksh. 3,708 above what was due in his job group and premised on the applicable Wage Orders.There is no underpayment. 45.Regarding the claim for gratuity, this is not based on any law, private treaty or collective agreement. There were statutory deductions and remittances. 46.Regarding the annual leave awarded and the cross appeal, as addressed above, the respondent failed to submit the necessary records, a fact noted by the learned magistrate in the ruling delivered on 23 February 2023. However, as this is the first appeal, the court is allowed to review the entire record and the claims and make its findings thereof. 47.Annual leave is regulated under section 28 of the Act. It must be taken once due. For the 3 years claimed for accrued leave days under section 28(4), the employee is not allowed to accumulate leave days beyond 18 months unless the employer has approved it. Without any records from the cross-appellant, the appellant can claim only 33 days, calculated based on the basic pay of KSh. 26,500.The leave pay for 33 days is Ksh. 29,150 only. 48.On costs, the appeal is largely without merit. Save for the leave pay as addressed above, the basis for the trial court's findings and the appeal is that the termination of employment was on valid and lawful grounds and thus justified. 49.On the cross-appeal, the leave pay addressed is allowed to the extent reviewed to KSh. 29,150 only. 50.As to the costs claimed by the cross-appellant, no submissions have been filed. Save for the cross-appeal, nothing else was done. Costs for the trial court are awarded to the respondent at 50%. 51.Accordingly, the appeal and cross-appeal addressed above, the judgment in Mombasa CMELRC No. E845 of 2019 is hereby affirmed, and the appeal dismissed save for leave pay at Ksh. 29,150 only. The cross-appeal is allowed, with the leave pay reviewed to Ksh. 29,150 only. The cross-appellant/respondent is awarded costs for the trial court at 50% only. for the appeal each party pay own costs. DELIVERED IN OPEN COURT THIS 28TH DAY OF MAY 2026.M. MBARŨJUDGEIn the presence of:Court Assistants: Catherine, Kemboi and Omar……………………………………………… and…………………………………..…………..